Citation Nr: 9934956
Decision Date: 12/15/99 Archive Date: 12/23/99
DOCKET NO. 94-48 566 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Alvin D. Wax, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher J. Gearin, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Louisville, Kentucky (RO), which denied the benefit sought on
appeal.
The appellant, who had active service from July 1969 through
March 1973, appealed that decision, and the case was referred
to the Board for further review.
In January 1997, the Board denied the appellant's claim. The
appellant appealed to the United States Court of Appeals for
Veterans Claims (Court). In an April 1999 order, the Court
granted a joint motion for remand, vacating the Board's
decision and remanding it for additional proceedings. The
appellant's case has been returned to the Board for action
consistent with the Court's decision.
REMAND
After the Board's January 1997 decision and during the
pendency of the appellant's appeal, the Court issued its
decision in Cohen v. Brown, 10 Vet. App. 128 (1997). In
Cohen, the Court held that the criteria in evaluating
stressors were no longer to be based on whether the event was
outside the range of ordinary human experience, but rather
the experience and response were to be considered on an
individualized basis. Id. at 141. Therefore, the Court
remanded this case so that the Board would adjudicate and
assess the sufficiency of the appellant's stressors under
Cohen. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991) (where the law changes after a claim has been filed
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the appellant
should apply).
The Court also indicated that the appellant had the right to
introduce additional evidence and argument. See Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
In light of the above, the appellant submitted additional
psychiatric medical records subsequent to the Board's January
1997 decision which have not been considered by the RO.
Given that the appellant has not waived RO consideration of
these records, the Board must remand the case for further
development.
Therefore, to ensure that VA has fully met its duty to assist
the appellant in developing the facts pertinent to his claim,
the case is REMANDED to the RO for the following development:
1. The RO should request the appellant
to identify the names, addresses, and
approximate dates of treatment for all
health care providers, both VA and
private, who may possess additional
records pertinent to his claim for an
acquired psychiatric disorder, to include
PTSD. After securing any necessary
authorization from the appellant, the RO
should attempt to obtain copies of those
treatment records identified which have
not been previously secured.
2. Then, the RO should review the claims
file to ensure that all of the foregoing
development has been completed in full
and readjudicate the issue in light of
Cohen and 38 C.F.R. § 3.304(f) (1999).
If the determination remains unfavorable
to the appellant, the RO should furnish
the appellant and his attorney a
supplemental statement of the case and
provide an opportunity to respond in
accordance with 38 U.S.C.A. § 7105 (West
1991), which fully sets forth the
controlling law and regulations pertinent
to this appeal. This document should
further reflect detailed reasons and
bases for the decision reached.
The purpose of this REMAND is to ensure due process. The
Board does not intimate any opinion as to the merits of the
case, either favorable or unfavorable, at this time. No
action is required of the appellant until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
DEREK R. BROWN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).